Are Employee Protests a ‘Protected’ Activity?

Recent immigration-related rallies have led many employees, mostly minority ones, to skip work on those days. That action sparked an important question in HR circles: How should employers react to unexcused absences caused by employees' attending political protests?

Advice: Don't fire out of anger. Employees' participation in such protests and rallies could be considered a legally protected activity under the National Labor Relations Act. Even if your organization isn't unionized, employees have the right to engage in "concerted activities," including political protests that have a connection to workplace issues. That means firing employees who took the day off (or threatening to fire them) could possibly be deemed an unfair labor practice.

Another potential legal hot button: You risk claims for race or national-origin discrimination if you treat those protesting employees differently than other employees who've skipped work in the past with unexcused absences. That's why it's best to enforce attendance and discipline policies in a manner consistent with your past practices. If you treat all employees similarly under your attendance policies, you have a good defense against discrimination claims.